The courts have long urged neighbours to seek to resolve disputes by using mediation. Indeed in Bradford v James (a boundary dispute), Mummery LJ said that parties should attempt mediation at the beginning of the dispute:
“…and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue.”
Further, Jackson LJ said in Faidi v Elliot Corporation (a noise case):
“…before embarking upon full blooded adversarial litigation parties should first explore the possibility of settlement. In neighbour disputes of the kind now before the court…if negotiation fails, mediation is the obvious and constructive way forward.”
A recent judgment suggests we are one step closer to seeing a standard order for mediation.
Why the courts encourage mediation
As I have explored previously, the reasons for such strong and continual judicial encouragement include:
- The legal costs of pursuing a neighbour dispute (which may itself not have any great financial value) to trial. For example, in Faidi, the parties spent £140,134 on legal costs to the appeal. Also in Cameron v Boggiano (a protracted neighbour dispute about the ownership of a thin strip of land), Mummery LJ warned that “the only certainty… is that the financial outlay is almost always more than the disputed property is worth”.
- The experience of taking a neighbour dispute to trial or the “community effect”. In Cameron v Boggiano, Mummery LJ said that suing and being sued by neighbours is “a stressful and unpleasant experience”.
- The potential future impact on the value of the properties involved. Mummery LJ flagged this issue in Cameron v Boggiano, when he noted that there could be unwanted long-term consequences that a sensible compromise might have avoided as “in the long run, both sides lose if, for instance, litigation blight has damaged the prospects of selling up and moving elsewhere.”
Bradley v Heslin
Bradley v Heslin concerned “a pair of gates in Formby” positioned for many years at the entrance to a driveway leading to two properties owned – at the time of the dispute – by the Bradleys and the Heslins. One party wanted the gates closed for security reasons. The other wanted them left open due to the requirement to stop their car and open the gates when entering and leaving their property. Previous owners of the two properties had taken a “consensual, co-operative and neighbourly approach”, but that ended when ownership changed.
Relations between the Bradleys and the Heslins broke down, and proceedings were issued when one party padlocked one gate open and refused to allow the other to shut it. The questions of who owned the pillars and gates and when (if ever) it was permitted for the gates to be closed were tried over three days in the High Court.
General points for neighbours to keep in mind
Norris J reiterated the general concerns about taking neighbour disputes to trial in the very first paragraph of his 86-paragraph judgment, by saying:
“Rather to my surprise I find myself trying a case about a pair of gates in Formby: surprise on at least two counts. First, that anyone should pursue a neighbour dispute to trial, where even the victor is not a winner (given the blight which a contested case casts over the future of neighbourly relations and upon the price achievable in any future sale of the property). Second, that the case should have been pursued in the High Court over 3 days. It is not that such cases are somehow beneath the consideration of the Court. They often raise points of novelty and difficulty and are undoubtedly important to the parties and ultimately legal rights (if insisted upon) must be determined. But at what financial and community cost?”
It is unclear from the judgment whether any mediation had ever taken place. In any event, Norris J considered that “sensible neighbours” would have “sat round a table” and agreed either a regime for closing the gates at agreed hours, or the installation of remotely operated electric gates, which might have cost £5,000. (As for any electric gates, the court said there had been some desultory attempts at exploring the possibility of this solution, which came to nothing.)
The court held that the Bradleys owned the pillars and the gates, but rejected that there was an easement to close the gates at all times and for all purposes. Instead, it held that the Bradleys had an easement with a “natural limit”, giving them the right to close and open the gates for all purposes connected with the reasonable enjoyment of their property provided that such use did not substantially interfere with the reasonable enjoyment of the Heslins’ property. Therefore, Mr Heslin was not permitted to padlock the gate open.
As for what was meant by substantial interference, Norris J gave the parties helpful guidance about how his judgment might work in daily life. After all the time and money spent on the litigation, a sobering thought is that Norris J said the parties should install the very thing they’d discussed before the litigation ever began, namely the “adequate opening arrangements” of “an electric system”.
Parties should engage in mediation
Norris J noted that “entrenchment of positions is a regrettable characteristic of neighbour disputes”. He added his voice to that of the many other judges who have urged parties to engage in mediation, even after proceedings have been issued, recognising that this could lead to an outcome satisfactory to both parties (in terms of speed, cost, resolution and future relationships), rather than pursuing litigation to trial.
He also quoted Ward LJ’s words from Oliver v Symons (a disputed easement case):
“…this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.”
Will there now be a standard order made in neighbour disputes?
Norris J suggested that it is time for the court to help parties involved in a boundary dispute, dispute over a right of way or other neighbour dispute. This help should take the form of a standard direction. If the dispute cannot be disposed of by some more obvious form of ADR (such as negotiation or expert determination) and the costs of the exercise will not be disproportionate having regard to the budgeted costs of the litigation, any District Judge should:
(a) impose a two-month stay for mediation and direct that the parties must take all reasonable steps to conduct that mediation (whatever the parties might say about their willingness to engage in the process);
(b) direct that the fees and costs of any successful mediation should be borne equally;
(c) direct that the fees and costs of any unsuccessful mediation should form part of the costs of the action; and
(d) give directions for the speedy further conduct of the case only from the expiration of that two-month period.
Norris J thought such a case management decision would be difficult to challenge on appeal, although he recognised that others may disagree. The court indicated that this standard direction would be in an “Ungley Order“.
He said this approach was necessary because it was no longer enough to leave the parties to mediate and to warn them of the costs consequences if that opportunity was not taken:
“In boundary and neighbour disputes the opportunities are not being taken and the warnings are not being heeded, and those embroiled in them need saving from themselves. The Court cannot oblige truly unwilling parties to submit their disputes to mediation: but I do not see why, in the notorious case of boundary and neighbour disputes, directing the parties to take (over a short defined period) all reasonable steps to resolve the dispute by mediation before preparing for a trial should be regarded as an unacceptable obstruction on the right of access to justice.”
Key points to take away
Parties involved in neighbour disputes need to pay careful attention to the plethora of judicial comment about using mediation. They should also now expect to be ordered to attempt to use mediation in the terms set out by Norris J.